Excerpt: - .....that that an order for eviction of the tenant or delivery of possession to the landlord can be made under section 5. it must, therefore, be held that in the present proceedings there has been no final order for eviction, and there could not be any such order. the proceedings, therefore, must be deemed to be pending. section 13 has made the amendments, made by the second amendment act, applicable to all pending proceedings. section 3 has been entirely deleted and substituted by a new section 3. under this new section 3, there is no provision for eviction on the ground that the land comprised in the holding is required by the landlord for the purpose of building. in the circumstances, in the present proceedings the tenants cannot be evicted.3. the rules are, accordingly, made absolute.....

Judgment:ORDER

S.K. Chakravarti, J.

1. These two Rules were issued at the instance of some thika tenants and have been heard together as they arise out of the same order of a learned Controller and as common questions of law and facts are involved. The opposite party filed proceedings for eviction against the petitioners under Clause (iv) of Section 3 of the Calcutta Thika Tenancy Act, as it stood before the amendment, only on the ground that the land comprised in the holding was required by the landlord for the purpose of building on it. The applications were allowed with a direction that the order of eviction will be operative upon payment of adequate compensation agreed upon by the parties or ascertained through a Commissioner. Thereafter a Commissioner was appointed for the purpose of determination of compensation and while the proceedings were going on before the Commissioner, the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Ordinance 1967 came into force and by an order dated 16th September, 1967, further proceedings in these cases were stayed in accordance with the provisions of the said Ordinance. Thereafter on the 2nd day of February 1970, the opposite party landlord filed applications praying that the Commissioner may be directed to submit his report as the Ordinance was no longer in force. The petitioners, who were the opposite parties before the Controller, contended that in view of the amendments of the Act by the Calcutta Thika Tenancy (Second Amendment) Act, 1969, the ground of eviction for purposes of building is no longer available to the landlord and as such the proceedings cannot continue. The Controller held that the original applications were not pending and therefore, Section 13 of the Amendment Act would not apply, overruled the objections of the petitioners and directed the Commissioner to submit his report. Hence these applications.

'13. The amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants, and all appeals from orders made on such applications, under the provisions of the said Act which are pending at the commencement of this Act'

The question, therefore, is as to whether the present proceedings can be deemed to be pending at the date of commencement of this Act. The Controller held that as there has been an order for eviction, the only course which was open to the petitioners was to apply under Section 7-A of the Act and that the proceedings cannot be held to be pending. In C. R. 3269 of 1970, disposed of by me yesterday, I have held that the order for eviction referred to in Section 7-A relates to a final order for eviction and not to a tentative order, as appears to have been passed in the instant proceedings. On a construction of the different Sections of the Act, I had come to the conclusion in that Rule, that before Section 7-A can be applied, there must be an order for ejectment of a thika tenant, and in a case where compensation has to be paid under Sec. 4, the application for ejectment can be allowed only after the compensation has been paid or deposited and that it is only after that that an order for eviction of the tenant or delivery of possession to the landlord can be made under Section 5. It must, therefore, be held that in the present proceedings there has been no final order for eviction, and there could not be any such order. The proceedings, therefore, must be deemed to be pending. Section 13 has made the amendments, made by the Second Amendment Act, applicable to all pending proceedings. Section 3 has been entirely deleted and substituted by a new Section 3. Under this new Section 3, there is no provision for eviction on the ground that the land comprised in the holding is required by the landlord for the purpose of building. In the circumstances, in the present proceedings the tenants cannot be evicted.

3. The Rules are, accordingly, made absolute and the order impugned is set aside and the proceedings for eviction be quashed.